The opinion
Richard L. Mays, Justice, dissenting. Although we have been confronted with the issue of the constitutionality of the guest statute several times, we have never subjected it to the rule of reason. That certainly is the standard of judicial review which the court subscribed to in White v. Hughes, 257 Ark. 627 , 519 S.W. 2d 70 (1975), and to which the court pays homage today. As the majority properly acknowledge, for the classification scheme created by the guest statute to withstand judicial scrutiny under the equal protection provisions of our state and federal constitutions, the classification must be “reasonable” and have a “fair and substantial relation to the object of the legislation.”
We obviously recognize this legal principle but have consistently refused to apply it to the guest statute. In Roberson v. Roberson, 193 Ark. 669 , 101 S.W. 2d 961 (1937), we sustained the guest statute against constitutional challenge relying upon a Michigan Supreme Court case, Naudzius v. Lahr, 253 Mich. 216 , 234 N.W. 581 (1931), which has since been overruled by the Michigan Supreme Court. Manistee Bank and Trust Co. v. McGowan, 394 Mich. 655 , 232 N.W. 2d 636 (1957). In White v. Hughes, supra, we relied on Roberson v. Roberson, supra, to sustain the constitutionality of the guest statute. Today, we rely on White v. Hughes, supra, and suggest that we await the views of the United States Supreme Court before we undertake a more indepth constitutional analysis. I reject this approach and would hold, consistent with the constitutional principle enunciated today but not applied, that the guest statute violates Art. 2, § 3 of the Arkansas Constitution which provides in part:
The equality of all persons before the law is recognized and shall ever remain inviolate.
The guest statute abrogates the duty of ordinary care by automobile driver/hosts to their passenger/guests. Ordinary care is simply the duty to act reasonably in relation to the health and safety of others. It prescribes a standard of conduct which is fundamental in any civilized society and without which our basic social fabric might be irreparably damaged.
Between 1927 and 1939 when this country was experiencing unprecedented economic stress, twenty-seven states, including our own, enacted guest statutes. These statutes have traditionally been justified in the name of the protection of hospitality and the prevention of collusive lawsuits. Although these may be noble objectives and well within the exercise of the legitimate legislative power, they can hardly be enhanced by the abrogation of the duty of ordinary care for the safety and wellbeing of our fellow brethren. Why should automobile guests be treated any differently than other recipients of hospitality or generosity? Does not the prevalance of liability insurance undermine any rational connection between the prevention of lawsuits and the protection of hospitality? Why eliminate all automobile guests’ right to recover for negligence simply because a few may abuse the right?
The requirement of rationality is one of the most fundamental limitations which our constitution imposes upon our government when it singles out any group of citizens for special treatment or special burdens. The guest statute does not yield to this requirement and, therefore, must fail. Since their enactment, ten states have held the guest statute unconstitutional and others have repealed it. We should join their ranks.
I respectfully dissent.